IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110013292 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the son of a deceased former service member (FSM), requests his mother, the widow of the FSM, be paid back pay, beyond the 6 years, of her entitlement to the Survivor Benefit Plan (SBP) annuity as a "forgotten widow."

2.  The applicant states his mother has been approved to receive a forgotten widow annuity.  This was approved by the Army Retirement Services.  She was paid an annuity dating back to 6 years only.  She is due back pay back to 1997.

3.  The applicant provides:

* Letter from Army Retirement Services, Office of the Deputy Chief of Staff, G-1
* DD Form 2769 (Application for Annuity)
* Voided personal check
* FSM's Notification of Eligibility for Retired Pay at Age 60
* FSM's marriage certificate
* Illegible certificate 
* Durable power of attorney
* Letter from the Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay, London, KY

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 16 February 1924.  He and his widow were married on 21 June 1952.
2.  Having had prior service in the U.S. Navy, the FSM was appointed as a second lieutenant in the Maryland Army National Guard (MDARNG) and executed an oath of office on 10 January 1952.  He served in a variety of stateside assignments and he attained the rank of colonel (COL).

3.  On 20 June 1969, the National Guard Bureau issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the FSM that he had completed at least 20 years of qualifying service and would be eligible for retired pay upon application at age 60.  Reserve Components SBP was not in effect in 1969, the year the FSM received his 20-year letter.

4.  The FSM died on 25 November 1976 prior to reaching age 60.  He was still a member of the MDARNG at the time of his death.  His widow did not remarry.

5.  On 20 June 2011, the applicant, a legal representative who holds a power of attorney, submitted a DD Form 2679 on behalf of his mother, the FSM's widow, applying for an annuity as a qualified surviving spouse.

6.  On 20 June 2011, an official at the Office of the Deputy Chief of Staff, G-1, notified the widow, through the applicant, that she had been certified as an eligible beneficiary under the legislation known as "Annuities for Certain Military Surviving Spouses" (ACMSS account) and that her application had been forwarded to DFAS.  The annuity is retroactive 6 years by law.  

7.  On 23 June 2011, an official at DFAS Retired and Annuitant pay notified the widow, through the applicant, that his office had received all documentation to establish the widow's "Retired Serviceman's Family Protection Plan (RSFPP)" annuity.  The first payment of $4,138.02 is from 1 December 1997 to 30 June 2011.  (On 28 November 2011, Army Retired Services clarified that DFAS establishes the ACMSS accounts as RSFPP because the system does not have a separate ACMSS account.)

8.  On 11 July 2011, by email to an official at the Army Review Boards Agency, the applicant stated that the DFAS letter mentions one payment of $4,138.02; however, his mother received a second payment of $11,797.23.  The combined sum is close to 6 years worth of pay.  

9.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 

10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  

11.  Public Law 105-85, enacted 18 November 1997, provided for an SBP annuity to be paid to the qualified surviving spouse of each member of the uniformed services who died before 21 March 1974 and was entitled to retired pay on the date of death; or was a member of a reserve component during the period beginning 21 September 1972 and ending on 1 October 1978, and at the time of death would have been entitled to retired pay but for the fact he or she was under 60 years of age.  The surviving spouse must not have ever remarried or otherwise be entitled to SBP or Dependency and Indemnity Compensation.  Annuities under this section would be paid for months beginning after the month in which the law was enacted.  The authority to pay annuities under this section was to expire on 30 September 2001.

12.  Public Law 106-65, enacted 5 October 1999, amended Public Law 105-85.  It extended coverage under that law to surviving spouses of all "gray-area" retirees and repealed the expiration authority.  The amendment as pertains to payment of annuities to surviving spouses of "gray-area" retirees was effective 1 October 1999.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's widow met the eligibility criteria to apply for an SBP annuity as a "forgotten widow" when the original law was passed in November 1997.  However, due to the barring statute it is too late for a normal application to entitle her to retroactive payments beyond 6 years.

2.  It would be equitable, however, to correct the records to show she applied for the SBP annuity as a "forgotten widow" in November 1997.  That would enable her to receive retroactive payments to 1 December 1997, the earliest date provided for by law.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 
showing she applied for the "forgotten widow" annuity in November 1997 and 
that she be paid the annuity, provided she otherwise meets the eligibility criteria, retroactive to 1 December 1997.



      _______ _   X_______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110013292



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013292



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1